The Supreme Court's "Violent" Video Games Case: The California Law Should Be Struck Down, But the Court May Well Uphold It

On April 26, the Supreme Court granted review in the case of Video Software Dealers Ass'n v. Schwarzenegger. The case involves a California law that imposes restrictions on -- and a labeling requirement with respect to -- the sale or rental of "violent" video games to minors. Several other states have passed similar laws, and others may well be watching this case, so the stakes here extend far beyond California.

Notably, the video game industry employs a voluntary labeling system that is age-specific and that includes quite specific descriptions of the games' content, but California apparently did not find that private labeling system to be sufficient.

I wrote a column about this case earlier, when it was before the district court judge – who granted a preliminary, and then a permanent, injunction against the California law's enforcement on the ground that it violated the First Amendment.

Then, in a decision issued on February 20, 2009, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit agreed with the district court that the law was unconstitutional. Notably, the panel included the Circuit's brilliant First Amendment stalwart and Chief Judge, Alex Kozinski.

Although we are often cautioned not to read too much into a grant of certiorari, it seems very unlikely that the Supreme Court took this case in order to proclaim, as the Ninth Circuit panel did, that minors do indeed have First Amendment rights – rights that extend far enough to reach "violent" video games.

Instead, to the extent that the tea leaves can be read, the grant of review here seems to foretell a sorry future for minors' right to create and consume speech freely.

The Clues that Suggest that the Court May Well Uphold the "Violent" Video Game Law

Granted, in the Supreme Court's recent, 8-1 opinion striking down the federal anti-animal-cruelty depiction statute, the Court made very clear that it would not exercise a "freewheeling authority" to create new categories of speech to be carved out, willy-nilly, from the First Amendment's protections. (I wrote about that opinion at length in an earlier column.) And at first glance, this language might seem promising for those who believe, as I do, that the California law should be struck down.

However, the Court also expressly declined, in that same opinion, to foreclose the possibility that it would create some new, categorical First Amendment exceptions in the future – it simply committed itself not to do so in the freewheeling way it felt that the government had proposed, which the Court described as a kind of cost-benefit analysis.

And more generally, there is much evidence that the Court simply does not take minors' First Amendment rights seriously. For instance, it has long allowed a watered-down "obscene as to minors" test to be used when it comes to sexually-explicit material. And the California "violent" video game law plainly borrows from that test.

In addition, the Court granted review in a First Amendment case involving a banner-waving high school student a few years ago, only to hold against the student and in favor of the school administration. (For interested readers, my column on that case can be found here.) Perhaps the Court even chose that case, in particular, because the student's message – "Bong Hits 4 Jesus" – was cryptic and comedic, and thus easier to dismiss than a serious, hard-hitting, and unmistakably political message might have been.

Also, though it's hard to believe, the Supreme Court has upheld government film labeling as relatively recently as 1987, in Meese v. Keene – and there, political films (deemed "political propaganda" by the government) were at issue. Moreover, in that case, the labeling requirement was directed at adults -- who were apparently deemed not to be able to use their own minds and judgment to assess the films that they saw, without an assist from the government.

Finally, while there is one Supreme Court case that might seem hopeful for the video game makers and sellers who are fighting the California law, that case is less encouraging than it looks at first glance: In Ashcroft v. ACLU, a 5-4 win for the ACLU (and the First Amendment), the Court held that websites could not be forced by law to use credit-card verification as a barrier to underage persons' accessing content that was deemed "harmful to minors." But a major concern driving the opinion was the fear that adults' free speech rights would be harmed if the law were allowed to stay on the books. Thus, the case was a First Amendment win, but not a direct win for minors' First Amendment rights.

The bottom line: The Court, based on its own precedents, has plenty of room to rule in favor of the California "violent" video game law if it so chooses.

The Logic of the Ninth Circuit's Opinion Is Unassailable

Yet the Ninth Circuit panel's opinion makes a far more compelling case for striking down the law. To begin, the panel notes that the California law is clearly targeting certain video games because of their "violent" content, and thus invokes the well-established constitutional test requiring strict scrutiny of content-based restrictions on speech: Only a "compelling" state interest can sustain such a restriction.

The State of California tried to locate a compelling state interest in evidence about the psychological effect of "violent" video games on minors – but tellingly, about half of that evidence came from a single researcher, the panel noted, so it hardly amounted to a broad-based consensus on the matter. The panel also faulted the government for reading far too much into that researcher's often-carefully-qualified opinions.

The Ninth Circuit panel seemed disturbed, too, by the fact that the state's evidence of the games' content was truncated to show the games' violence, but not to reveal the plotlines that surrounded that violence – plotlines that would provide the violence with context and meaning during the gaming experience.

The panel also noted that prior Supreme Court case law had stated that minors are entitled to "a significant measure of First Amendment protections." And it warned that, though the Court has recognized that "there is a compelling interest in protecting the psychological…well-being of minors," this interest is surely not tantamount to an interest in "controlling minors' thoughts."

Finally, the panel noted that there are less restrictive means than the California law to achieve that law's objectives – such as parental controls, and/or a government campaign to educate the public (and especially parents) about the industry's existing private rating system.

In sum, the Ninth Circuit's logic is sound and persuasive. Nevertheless, the Supreme Court may well disagree with it – re-reading its own precedent to allow the California law to stand.

An Exception for "Violent" Video Games Cannot Be Cabined, and Will Be Abused

If the Supreme Court does create a First Amendment exception for the California law, there will be no cabining it.

By contrast, the anti-animal-cruelty-depiction statute the Court recently considered was limited: Unless an animal was harmed or killed, and the killing was filmed or otherwise recorded, the statute simply did not apply.

There, real-life violence – not the remote, speculative possibility of real-life violence – was necessary for prosecution. (And if the statute needed to be cabined further, which would have been a good idea, there were specific ways to do so -- some of which Justice Alito suggested in his dissent.)

The same logic works for the longstanding child-pornography First Amendment exception: Unless a child is molested, true child pornography cannot be created.

Thus, the Court has made clear that even virtual child pornography – made with computer graphics, not children -- remains as legal as "Lolita"; only passing it off as real is a crime. Virtual child pornography may be disgusting and repellent, but as long as no real child is harmed (and no fraudulent passing-off occurs), it is legal.

In those two examples, a crime must precede the speech at issue, and is directly motivated by the market for that speech. But California's "violent" video game law is different: There is no past crime at all, and it is highly speculative that any future crime will ever occur.

It is also likely that the California law could become a trap for the unwary. No one is likely to inadvertently create child pornography, or to inadvertently create a video in which an animal is brutally and purposefully killed. In today's media environment, however, it's entirely possible that, someday, a creator might not even think of her mash-up creation as a "video game," yet it might still fall under a statute. And since no one really dies in a video game, the "violent" element of state statutes, too, might be ambiguous in its application. Is a game that features aggressive actions toward non-human creatures using weapons that don't exist in the real world truly "violent"?

By comparison, it is a clear matter of fact whether a person is or is not underage. It is a clear matter of fact if an animal has been hurt or killed. But I believe it is a matter of opinion whether a given video game can be categorized as "violent," and in the fairly near future, we may see some blurring, too, as to what can be categorized as a "video game."

As a result of all this ambiguity, the California statute and others like may exert a strong "chilling effect" on free speech.

Why Only Video Games? Are "Violent" Novels and Movies Next?

Finally, the California law's weakness is underlined by the question "Why only video games?" There is no good answer – another hint that the principle behind the law, if accepted by the Court, won't be able to be cabined. Only genre snobbery – not any valid logical distinction -- could mark the dividing line.

The tragic fact is that movies and novels have played a role in inspiring murderers – not just marginal works, but works by popular, mainstream authors such as Stephen King. Are minors going to be legally prohibited from reading those works as well?

Couldn't minors get dangerous ideas from the violent classic "Lord of the Flies," which is often taught in schools? What about the brilliant and tremendously popular young-adult novel "The Hunger Games," where children under 18 –and some as young as 12 -- are pitted against each other by their government, in an unremittingly violent fight to the death? Even the beloved "A Separate Peace" culminates in a crippling act of violence.

In sum, there is a world of difference between, on the one hand, punishing films of real-life rape, murder, or animal cruelty, where the crimes were done to generate the film; and, on the other hand, punishing video games (or films, or novels) that could have any number of effects – including positive ones.

Among a hundred thousand young video-game players, one may be turn out to a be a violent murderer, another a game designer, and a third a comic book artist. Only godlike foresight could tell us which, or why. Did the game create the player, or did the player's own perspective inform what he or she took away from the game?

When we make exceptions to the First Amendment, we should be acting from certainty, not conjecture. Free speech should not be held hostage to speculation about its possible results, or we may someday lose the right to it altogether.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden's article "A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-Human Animal" appeared in the journal Animal Law and can be found on her website.